THE INTEGRATION OF BANKING AND TELECOMMUNICATIONS: THE NEED FOR REGULATORY REFORM

584 JOURNAL OF LAW AND POLICY

the attorney-client privilege nor the work-product doctrine can
ensure the confidentiality of self-critical materials. What is
needed is a distinct self-critical analysis privilege.

B. Bredice v. Doctor’s Hospital

Bredice v. Doctors Hospital^34 is often acknowledged as the
first case in which a court recognized a common-law self-critical
analysis privilege.^35 Ms. Bredice, in her medical malpractice
action, sought discovery of the minutes from medical board
meetings convened by the defendant hospital concerning the
treatment received by her late husband.^36 The court observed that
these meetings, which evaluated the performance of medical
staff, were required by the Joint Commissions on Accreditation
of Hospitals and existed for the “sole” purpose of improving
care.^37 The court continued:

[T]hese meetings are essential to the continued

improvement in the care and treatment of patients.

Candid and conscientious evaluation of clinical practices

is a sine qua non of adequate hospital care. To subject

these discussions and deliberations to the discovery

WIGMORE, supra note 17, § 2286) (“No pledge of privacy, nor oath of
secrecy can avail against demand for the truth in a court of justice.”).
Particularly within the context of internal compliance efforts, such as in
Upjohn, disclosure to anyone outside the agency of the party, including to
government agencies, may constitute a waiver of the privilege. See In re
Steinhardt Partners, 9 F.3d 230, 235–36 (2d Cir. 1993) (deeming company’s
voluntary submission of materials a waiver); Andel, supra note 29, at 100.
Further, the privilege “does not apply when the in-house attorney, who
regularly wears several hats, is performing work that requires management
expertise rather than work that requires legal acumen.” Andel, supra note 29,
at 101.

(^34) Bredice v. Doctors Hosp., Inc., 50 F.R.D. 249 (D.D.C. 1970).
(^35) Jenoff, supra note 14, at 580 (“[I]n Bredice, a court recognized for the
first time that there was a strong public interest in allowing the free
discussion of information in socially useful critical self-examination, and that
if discovery of such materials were allowed, the flow of information would
halt.”).
(^36) Bredice, 50 F.R.D. at 249.
(^37) Id. at 250.